Aerial Applicator Suit Demonstrates Scope of Risks

The recent U.S. Fourth Circuit case of Kritter v. Mooring involving the crash of a helicopter aerial applicator shows how risks can be distributed among farm owners, renters, crop consultants, and others, and provides a guide for how to allocate those risks in custom application contracts. A landowner leased his farm to his relatives’ farming corporation. The farm corporation engaged Nutrien for various consulting services, including aerial pesticide applications. Nutrien employed a crop consultant to work with the farm corporation, and when needed, to hire aerial applicators. In 2020, the crop consultant hired Eugene Kritter, an experienced aerial applicator, to spray some of the corporation’s fields for stinkbugs. During the application, Kritter’s helicopter hit a “dove wire,” a low-hanging, 1/4 inch, steel wire strung about 30 feet high to attract doves for hunting. Kritter was killed in the resulting crash.

Kritter’s estate sued the landowner, the corporation that leased the farm, Nutrien, and the crop consultant employed by Nutrien. All of the defendants (the landowner, the corporation, Nutrien, and the consultant) were granted summary judgment by the district court which found they owed no duty to warn Kritter of the wire, and that the risks of the wire were not foreseeable to them. However, the Court of Appeals reversed this ruling and remanded the case for a trial. Key rulings from the appellate court included the following:

• Premises liability – generally, a landowner is required to make property reasonably safe or give warnings to lawful visitors. Here, the landowner and the farm corporation were long aware of the wire and knew that aerial applicators flew low over fields. Thus, a jury could find that the danger posed by the wire to the applicator was foreseeable and they should have given a warning.
• Undertaking liability – when undertaking a contractual activity (such as consulting and hiring an aerial applicator), the person should generally exercise a reasonable degree of care for the safety of others when completing the activity. Thus, the crop consultant had an obligation to exercise the skill and care customarily used by a crop consultant when hiring an aerial applicator. The crop consultant was aware of the wire and knew that aerial applicators often flew low, but did not warn Kritter about the wire. Thus, a jury could find that the crop consultant had a duty to warn of reasonably foreseeable hazards (such as the wire). Nutrien was vicariously liable for the crop consultant since he was acting within the scope of his job for Nutrien.
• Open and obvious risk – the appellate court held that it was for the jury to decide whether the wire could have been seen by the pilot such that it was an open and obvious risk, and therefore the defendants had no duty to warn.

This negligence case was decided under North Carolina law, and all negligence claims are highly fact-dependent. However, it demonstrates an obligation in custom pesticide applications for those who have control or involvement in the activity to become familiar with the land and either fix known hazards or provide an adequate warning. Likewise, the various participants can contractually allocate those risks amongst themselves – for example, specifying who is responsible for detecting and communicating hazards to the applicator.

Not a Celebration, But an Anniversary Nonetheless

Twenty years ago today, my house, my neighborhood, and the city I lived in turned into a lake – literally. Hurricane Katrina made landfall in southern Louisiana on August 29, 2005, and her storm surge overwhelmed the 17th Street Canal walls (and several other levees and floodwalls) that made it possible to occupy the land between Lake Ponchartrain and the Mississippi River, otherwise known as New Orleans. Thus, I was able to float by my house roughly a week later (the white one on the left):

Katrina changed many, many things, my own life trajectory included. Yes, we returned (once the water receded), and Yes, we rebuilt. We forged incredible relationships with friends and neighbors, worked hard, and in particular, persevered. Without question, it made our small family unit stronger, and twenty years later, that is something that I am truly thankful for. While we’re no longer in New Orleans, we’ll always feel its unique pull (and a gnawing hunger for the best food on the planet).

But when I raise my glass tonight, it will be for my wife and kids – the bonds that Katrina tested, but ultimately made unbreakable.